Brown & Andrews [2025] FedCFamC2F 596 (9 May 2025)

I have found [Mr Andrews] to be an intelligent person, and he has always been honest, kind, funny calm and down to earth kind of guy...I love him like a brother.[39]

1. Mr J's affidavit makes no mention of the father telling him that he was a police officer or that he had lied to others in this regard. It makes no mention of the father having lived with him for a period of time from mid-August to mid-November 2024.
2. In his oral evidence, the father deposed that he informed Mr J of his lie to the mother as to being in the police force in late 2024 when he was staying with him. Mr J's oral evidence supported the father's assertion. Mr J's affidavit was sworn after the father stayed with Mr J, therefore being after the father revealed he was never in the police. Mr J labelled him "honest" in spite of this fact. Mr J maintained his belief during cross-examination that the father is an honest person because "he's done a lot of great things." Such a belief is misconceived.
3. Further, whilst it was the father's evidence that he was drinking a bottle of wine a day when staying with Mr J, it was Mr J's evidence that he never saw it; he only ever saw him consume a glass of wine when they cooked dinner.
4. Mr J is clearly aligned with the father. I do not place great weight on his evidence.

1. The mother alleges that the father perpetrated family violence upon her during the parties' relationship and has stalked her post separation. She alleges that she is fearful of the father because of such conduct.
2. The mother deposes as to an incident in mid-2018 when the father grabbed her arms very tightly and tried to physically shove her out of the spare bedroom in their home. The father does not depose at to this alleged specific incident but broadly denies that he has ever been violent towards the mother; he stated in the course of his oral evidence merely that "I'm sure I have sworn at the occasional person in anger - not in terms of the domestic situation."

1. Despite the volume of allegations in her written evidence, the mother seeks a positive finding as to one incident only occurring in mid-2019. The mother deposes that on this date, the father was in a rage after she had asked him to stop drinking alcohol and mixing it with medication. The parties were upstairs in the hallway and the mother walked away from the father into the parties' bedroom. The father began forcefully hitting his elbow through the main bedroom wall, leaving a hole. The mother corrected her evidence during the trial; the father had actually hit a door leaving a hole. A photo of this hole is in evidence.
2. The mother was terrified and ran downstairs to get X from the lounge room area. The mother had X in her arms when the father pulled the mother by her neck as he was trying to get hold of X. The mother then deposes:

He used both of his hands to pull me at the throat. He forced me against the hallway wall next to [the] office room downstairs. I managed to get out of his clutch as it was happening quickly and then he was unsteady on his feet. I ran to the corner of the dining room and used my body to cover [X] pleading with him saying "please don't hurt me"...[X] yelled out "don't hurt my mummy". [The father] did not attack again. [40]

1. The mother deposes she then left the home in her pyjamas with X and went to a friend's house for approximately ten minutes prior to attending Suburb FF Police Station, where she spoke to a Constable who told her that she was making a very serious allegation and she should maybe think about it. The mother did not proceed with the matter further and wondered whether the Constable knew the father. The New South Wales Police Force COPS record dated mid-2019 records that the Person Of Interest ("POI") (the father) was a serving Police Officer about 20 years ago and that there was a verbal argument as to financial issues wherein the father was verbally aggressive and yelling. It does not record a physical assault and records that the mother was concerned as to the father's mental health and welfare.
2. The mother deposes that she was later contacted by a Sergeant who took a statement from her and her friend as to the Constable's actions. The mother's oral evidence was that she "absolutely" told the Constable as to her allegations as to the physical assault at this time.
3. The day following this incident, the parties had a series of text exchanges which read:

Father at 6:39 am: I'm so very sorry I'm a monster What I did was unforgiveable.

Mother at 12:29pm: We have no money so staying at a hotel is not a financially viable option.

Mother at 6:40pm: I can't believe what you have done to this family.

[...] 2019

Father at 6:21am: You will never m Le how terribly sorry I am Know I'm dying from the guilt and Shame...

....

Father at 7:36pm: No need to hide I'll head off soon

Father at 8:33 pm: I know you don't want me here, but I'd really like to stay. Are you ok with that and we can talk more tomorrow.

Mother at 8:40pm: I don't want you here.

...

Mother at 8:43pm: You physically hurt me. I don't want you here.

(As per original)

1. There was no response to the last message of the mother.
2. On 24 July 2019 the following text exchange occurred:

Father at 12:34pm: Where are you telling [X] I am?

Mother at 12:40pm: She hasn't asked

Father at 12:41pm: Riiiight

Mother at 12:41pm: She asks why daddy scares me

Father at 12:41pm: She asked me the same thing

Killed me

(As per original)

1. Further text message exchanges occur between the parties wherein the father then asserted to the mother that he was not trying to hurt her, he was trying to get X as she was screaming to him for a hug and that he understood why she and X were scared by him, "but it was completely out of character".[41]
2. The father's written evidence as to this incident is brief. He denied shoving the mother into a wall, grabbing her arm or pushing her. He concedes that his elbow made contact with the door and "cracked it" after throwing his arms above his head in frustration during their argument. It was not explained at any time how the father's elbow made contact with a vertical surface arising from him throwing his arms up in the air.
3. The father's cross-examination of the mother as to this specific incident was cursory notwithstanding it was the sole factual finding the mother sought as to family violence. The mother was merely asked to confirm her allegation and that it occurred five years ago. It was only the Independent Children's Lawyer that asked the mother specific questions about this incident in cross examination. Her answers were specific and detailed.
4. During the father's cross-examination by the Independent Children's Lawyer the father denied placing his hands around the mother's neck but conceded that he had yelled at the mother that day and immediately denied his asserted behaviour in the text. When asked about the mother's message wherein X is said to ask "...why daddy scares me", the father's response was that "she was telling me I scared her, not that she was scared of me". The alleged distinction between these two statements was not addressed in cross-examination. The father asserted that it was not family violence as he did not mean to do it. It is trite to observe that intention is not required for an action to fall within the definition of family violence.[42]
5. The father's cross-examination of the mother focused on her actions post separation which were allegedly at odds with her assertions as to the father's perpetration of family violence and relatedly her fear of him. Essentially, it was argued it could not be the case that the mother feared the father because she:
   • permitted unsupervised time between the father and X for multiple years post-separation;
   • facilitated changeovers for a period of time, which occurred in the undercover "basement" car park at the father's apartment block;
   • attended the father's home and threw a brick through the window to retrieve X despite being allegedly "terrified" of him; and
   • gave the father a ticket to a dance recital at X's school, which occurred in late 2022, with such tickets being numbered so that the father sat a seat or so away from the mother.
6. The father submitted that:
   • The police records of mid-2019 do not record any complaint by the mother as to risk, the mother's presentation or that the mother was distressed.
   • The mother could not be fearful of the father as changeovers occurred in the basement carpark of the father's residence every Sunday for a period of two and a half years.
   • There are no convictions against the father and the Apprehended Domestic Violence Order was ultimately withdrawn.
   • The mother put the alleged incidents behind her when she agreed for X to spend overnight unsupervised time with the father.
7. I turn now to each of the issues/incidents raised by the father in turn.
8. The mother was firm and unequivocal in her evidence that she detailed her allegations as to the perpetration of a physical assault by the father to the Constable. I place little weight on what is and what is not recorded in the police notes in circumstances where it does not record the father's own conceded action in damaging the door. In any event, for the reasons recorded above and below I accept that the mother was hesitant to report the father to the police. I accept the mother's unchallenged assertion that the father told her he had contacts in the police force to dissuade her from making notifications as to his violent conduct. I further accept the single expert's opinion that such behaviour could be, and I in fact find, that this is intimidation of the mother by the father. It is controlling behaviour.
9. The ultimate withdrawal of the application for the Apprehended Domestic Violence Order and the lack of any criminal charges being laid against the father is not dispositive as to whether this alleged incident occurred. It is not a corollary.
10. The assertions that the mother has acted in a manner contrary to her allegations is unconvincing. The father failed to address in any substantive manner the mother's evidence of the effect of the father's falsehoods on her and the fabrications as to his conduct whilst so employed, including that when people would "cross" him he would "fuck them up"; for example, breaking a man's back who was thereafter wheelchair bound.[43]
11. I accept the mother's unchallenged evidence that she did not want X to have overnight time with her father but acquiesced to the father's demands as she was fearful of him:

I regret it now, allowing that. What I do remember at the time is it is very difficult to - if I withheld [X] from [the father], I knew he would just continue to take her...he was very aggressive in his messages to me around how I must give him... unsupervised time, overnight time, more time.

1. There is no evidence to support the assertion that the mother's conduct in delivering X to the father in an underground carpark and giving the father a ticket to X's dance recital (where there would be other people present) grounds a finding that the mother's allegation is untrue. Such a submission infantilises the complex nature and effects of family violence. I note it was the mother's unchallenged evidence that she watched one dance and then left as she felt so uncomfortable and unsafe; "it was horrendous."
2. For the reasons recorded above I accept and find that the father perpetrated family violence upon the mother in mid-2019 as deposed by her. In summary:-
   • I place little weight on the husband's evidence as to this incident for the reasons recorded in paragraphs 124 to 134 above.
   • The father conceded damaging the door with his elbow.
   • The mother's evidence as to this incident was detailed and unchallenged by the father as to the specific events.
   • I place little weight on the hearsay notes of the Police Officer who was not called for the purposes of cross-examination.
   • The father did not deny physically hurting the mother in their text exchange merely that he was "not trying to hurt her".
   • X was scared by the father's actions.
   • I rejected the father's case as recorded above that the mother's actions subsequent to this incident bely the events as alleged by her.

1. An incident occurred between the parties at their home in or around early 2020 in the presence of Mr J. The parties agree that the mother complained about the meal the father had cooked and so he took it out and threw it into the garden. There is dispute as to whether during the incident the mother jumped on the father's back. Mr J deposes the mother did so. He did not think that the father taking the chicken outside and throwing it away was strange behaviour. Arising from my concerns as to the evidence of both the father and Mr J, I cannot safely ground a finding as to whether the mother did jump on the father's back. In any event, whilst this incident was the subject of cross-examination, its relevance was not the subject of any final submissions made by any party. The father appeared to be suggesting by way of his cross-examination of the mother that she could not have been fearful of the father if she jumped on his back. I reject that such an inference is available.

1. In early 2020 the father collected X from daycare without the mother's prior knowledge and despite the father being aware that the mother felt it was unsafe for X to have unsupervised time with him. He had not spent time with her for almost two weeks.[44] The mother was informed of X's collection by the daycare. The mother was staying in Suburb GG at the time for a work conference. The parties exchanged text messages in which the father demanded that X stay with him overnight. The mother did not consent. The father told the mother that he had barricaded the house and she would not be able to gain entry. The mother contacted Suburb O Police Station and was told she could gain entry by smashing a window if need be as it was her home; she just had to pay to fix it. A police officer confirmed to the father that the mother was told that she could enter the house by any means necessary.
2. The mother alleges that when attending at the former matrimonial on this day she found the front door locked shut with a bike lock, both side gates padlocked, all curtains down, a car blocking the garage and loud heavy "death metal" music playing. The father readily concedes that he had secured the house so that the mother could not access the property, locking the outer doors with a chain.
3. The single expert in the second report records that after hearing the audio recording of this incident, he asked the mother to comment that it did not appear that any "death metal" or similar music was playing when the father was recording her arrival at the property. The mother stated that it was "unusual" music nonetheless and "not the typical music that she would expect."[45]
4. The mother scaled the fence to try and gain access to the home but was unable to do so and hurt her shoulder in the process. She attempted to gain access by using her key but something had been jammed into the key lock to block it shut. The mother went back around the front through the neighbour's fence and knocked on the door. Despite the loud music allegedly playing, the father opened the door but shut it again after refusing the mother's request to see X and make sure she was okay. The mother threw a brick through the window to gain access and remove X from the premises. Police attended the property and spoke with the father. The mother made a statement to the police in early 2020. No charges were laid.
5. In cross-examination the mother deposed that she peeked through the blinds to ensure X was not present prior to breaking the window; deposing that she did not throw the brick, she "pushed it through." When asked if she was sorry for her actions on this day, the mother's evidence was that she was not, as she "was worried that he killed her...either killed her or may have killed her." The mother was unable to answer why, in those circumstances, it had taken her five hours to attend at the home. When asked the reason for her desperation in cross-examination by the Independent Children's Lawyer, the mother stated that she was unsure whether X was alive or not, having regard to the messages from the father that he had taken preventative measures to keep her from accessing the house:

MOTHER: I had a lot of fear for my life and [X]'s life in that time period. And I had no way of seeing if she was okay.

ICL: Did you fear [in early] 2020 that [the father] might've killed [X]?

MOTHER: Yes to get back at me.

ICL: Had he ever said he would do anything like that?

MOTHER: No.

ICL: Did that fear go away?

MOTHER: No, I still have that fear.

ICL: How does that sit with you facilitating unsupervised time between July 2020 and January 2023? How do you say to her Honour that you held a fear that [the father] would kill [X] and yet you facilitated unsupervised time without any court orders in place from July 2020 to January 2023?

MOTHER: There were mediation plans in place - I worried that - he was very threatening towards me with very aggressive messages and I was really worried that if there was no contact with the father that he would retaliate against me.

1. The father conceded that on reflection his actions in sending such text would have been very alarming for the mother. He deposed that he did not think about the potential of what he did causing conflict, but "if I did I wouldn't have cared." The father then conceded that he did think about it, but he did not care because he wanted time with X. He accepts that he put X in the middle of the conflict between himself and the mother. The father was unapologetic during submissions for his part in the events that unfolded on this day. It was submitted that the father was a person entitled to take X from day care, and "on top of that...it's over four years ago." The father's submissions echo what I have observed, and the Independent Children's Lawyer has submitted, to be a blatant lack of respect for the mother that compounds the matrix of concerns apparent to me on the evidence.
2. In cross-examination by the father the mother's treating psychologist, Ms Q, deposed that she could not recall whether the mother told her about her actions in throwing the brick through the window of the home. She accepted that it was not in her notes. She gave evidence that the mother told her that in 2020 she was concerned that the father may kill X and that the mother has told her that she continues to fear for X's safety, having articulated that in session. It was put to Ms Q that this was not in her notes:

COUNSEL: I'm talking about murder - killing the child. Right - so I couldn't see in any of your notes you mention - but you have a memory do you of her telling you that she was concerned that [the father] would kill the child when she was in his care?

[MS Q]: Yes, yes. That is correct.

COUNSEL: And is it the case that she's told you that's still her concern?

[MS Q]: Yes that is the case.

COUNSEL: It's quite a serious matter isn't it?

[MS Q]: It is, absolutely.

COUNSEL: Could you just look at your notes? I couldn't see any note in relation to this issue. I might be incorrect but I couldn't see it there.

[MS Q]: It may not be written there in sort of a literal sense - but it's certainly discussions that we would have - her ongoing fear of safety around her child and sense of danger that her ex husband would be potentially perpetuating violence towards her.

COUNSEL: I'm asking you about the death of a child, do you understand that?

[MS Q]: Yes correct.

COUNSEL: And I'm saying to you I couldn't see any reference in your notes that you were told that. And I'm asking you could you check your notes and double check them please.

[MS Q]: I have read my notes today in preparation for this and whilst I may not have used those exact words, we've certainly talked about issues of safety. And when we're writing our notes we're not necessarily writing word for word everything that is said.

COUNSEL: Sure but there's no indication there of kill or murder or death is there in your notes?

[MS Q]: No, there may not be any use of those words - there is not any use of those words but certainly there were discussions around safety - fear for safety.

1. She denied that she left this out of her notes as she thought it was "ridiculous."
2. As to Ms Q's evidence, the father submitted:

Your Honour knows that the mother told her treating psychologist that she was concerned that the father would kill the child, and it doesn't appear in the psychologist's notes and the inference has to be that the mother told her not to put it in there. [Mr H] had no idea about it....

....

And on top of that, her treating psychologist has hidden it from the court, and I would submit on purpose. Because the mother knew, and the psychologist knew putting that in wouldn't help her case.

1. This is a gravely serious submission that ought not have been made absent evidentiary foundation. It was not put to the mother that she directed or requested Ms Q not to note down that she was concerned that the father would kill X. It was not put to Ms Q that she had actively hidden evidence from the court. It is reflective of the reckless and cavalier approach the father takes, and it does both he and those who made it on his instructions no credit.
2. I accept that the mother's version of this event was not correct and was embellished. On balance, and having viewed the video of the "[brick] incident", I am not satisfied that the mother could see under the blind to see where X was. I am not satisfied that there was "death metal music" playing when she arrived as there is no evidence to support this; the music playing in the video did not cause me concern. I do accept that the father's actions in unilaterally removing X from daycare and barricading the home so that the mother could not enter caused the mother to fear for X's safety at that particular time. I find that the father's inability to accept and acknowledge the part his actions played in the events of this day is indicative of a lack of reflection and an inability to accept responsibility. His evidence clearly reflects that his behaviour was predicted on his own needs and wants; without thought as to its potential consequences and impact on the mother and X.
3. I do not accept that the mother has ongoing fears as to lethality. She does not depose to this in her affidavit, does not tell her husband of such concerns, nor were any submissions made to support this in the mother's case.
4. The father by way of his submissions raised rhetorical questions as to the mother's lack of respect for the father in the mother asserting that she is afraid the father is going to kill X.

What about the lack of an apology for saying that? What about the complete lack of insight in saying that? I ask your Honour to reflect on how would this little girl appreciate her mother having that view of the father that she loves.

1. This submission is reflective of the father's incapacity to accept any responsibility for his own actions. It reflects the father's view, clear in both his written and oral evidence, that the mother bears a significant weight of blame for the current state of affairs. He remains of the belief that "[the mother] is trying to erase me from X's life."[46]

1. The father has a documented history of complex mental health issues and has sought treatment for same. The single expert opined that the father's pattern of responses suggests that he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit and appears somewhat reluctant to recognise minor faults in himself. The father described to him problems of greater intensity than is typical of defensive respondents including the impact of traumatic events and alcohol abuse or dependence.[47] I accept this unchallenged evidence.
2. The father attended upon a psychologist for work related stress in 2012.
3. On 20 April 2016 the father began seeing clinical psychologist Dr Y, presenting with panic attacks, acute anxiety and depressive symptoms. He was prescribed Xanax.
4. On 5 April 2018 the father was referred back to Ms Y by Dr HH for the same reasons as he attended for in April 2016; anxiety, panic attacks and low mood. He recommenced with Dr Y on 10 April 2018 and saw her on approximately nine occasions during 2018 prior to her relocating to the United States. The father told the single expert that he received a diagnosis of post-traumatic stress disorder and his sessions with Ms Y were particularly helpful as it was the first time he had spoken about his childhood trauma and how it had resulted in "imposter syndrome."
5. The single expert's recording that on 2 May 2018 Dr HH recorded his view that the father should not be looking after X and did not have the capacity to do so was not challenged and I so find.[48] The father himself conceded that in 2018 he and the mother agreed that he "needed some help" and he told the mother that he thought it best that he not solely care for X whilst he was seeking treatment.
6. In mid-2018 the father was admitted to M Hospital after being recorded as attempting to take 45 tablets of two milligram Alprazolam (Xanax) and succeeding in consuming 15 of those tablets with a bottle of wine. The father is recorded as informing the hospital that he drank three bottles of wine during the day as well as ingesting an unknown amount of Quetiapine, noting there were ten tablets missing from a packet of 60.[49] The mother asserts that on this occasion the father had attempted to take his own life stating that "I do not want to go on living life like this. I am ending it all" in front of X, who was "hysterical."
7. The father's written evidence as to this event is minimal: he denies ever having attempted suicide and "strongly denies" that he stated the words accorded to him by the mother. He admits that he was taken to hospital after the mother called an ambulance "after seeing me take some Xanax" and he was released the next day. It is the father's written evidence that his consumption of these tablets was not an attempted suicide, but "merely an accident".[50] How the consumption of fifteen tablets was accidental is not explained. The father blamed this event on the false suicide of a friend as recorded above.
8. The father initially confirmed in cross-examination his written evidence that he had not attempted suicide on this occasion. His evidence as to this incident then became contradictory and unbelievable. On the one hand, he deposed that he remembers nothing of his hospital stay and little of the events that afternoon, including no recollection of taking fifteen tablets. On the other hand, he positively asserts that he did not attempt suicide at the time. When pressed further, the father finally conceded that it could be possible that he did attempt suicide and the mother could be telling the truth given he could not recall the day's events. There was no other explanation provided by the father as to his conduct in circumstances where it was plainly untrue that, as asserted to the treating professionals at M Hospital, he had "struggled" since his friend's death and that prior to this death he had been doing "ok, improved mood, sleeping well.."[51]
9. The father attended upon Dr JJ, psychiatrist, at some point in early 2018 due to his self-reported alcohol consumption of 1 - 1 ½ bottles of wine per day. It is clear from the M Hospital records of mid-2018 that the father was attending upon Dr JJ prior to his hospital stay as he informed the author he sees her "once every 3 wks [sic]."[52] He informed Dr KK that he was advised by Dr JJ to reduce his alcohol intake but did not do so until the hospital stay. Dr JJ made a diagnosis of depression, panic attacks and agoraphobia. The father is said to have seen Dr JJ approximately eight times, until around May 2019.
10. The father successfully completed a LL Program with MM Health commenced by him in June 2018.
11. From December 2019 to April 2020 the father attended upon Ms NN, psychologist, for 11 sessions. At the commencement of therapy, the father was experiencing symptoms of depression and anxiety due to "workplace issues" and at that time fit the SDM-IV-TR criteria for adjustment disorder. Ms NN's notes record that the father experienced "up and down" mood during treatment, and he had trouble leaving the house:

His self-reported depression, anxiety and stress symptoms were in the elevated range. In [early] 2020 he reportedly experienced suicidal ideation. His final appointment appears to have been in early May 2020. Final session notes from 07/05/2020 indicate follow-up session/s were nevertheless expected. [53]

1. Despite Ms NN recommending a further eight weeks of treatment, the father ceased his appointments with her citing the onset of the COVID-19 pandemic and believing "the work had concluded."[54]
2. The father's current prescription medications include Seroquel, which is used to assist with sleep. The father has been taking this medication since 2018 and advised the single expert that the medication generally helps him to stay asleep. He denied any side effects or being aware of any possible interaction between taking Seroquel and the consumption of alcohol.[55] He understands that Xanax and alcohol is a lethal combination.
3. The father is not in receipt of a mental health care plan and is not of the view he requires psychiatric or psychological assistance, as above. He concedes only that it was reasonable for the mother to have concerns as to his mental health seven years ago, but not currently:

COUNSEL: It's reasonable for her to have concerns about leaving [X] unsupervised with you against that background?

FATHER: Seven years ago, I guess so yeah.

COUNSEL: Well you've not been under psychiatric supervision for the last six years have you?

FATHER: Nor have I needed to.

1. Having regard to the evidence above, I accept the mother's submissions that there is a cloud over the father's mental health. The father has clearly had significant difficulty with his mental health in the past. Despite being plainly aware of the mother's concerns as to same, and knowing it would be an issue in these proceedings from 2022 (when the mother commenced proceedings) at the very least, the father has not consistently availed himself of psychological or psychiatric treatment. He did not undertake the further treatment recommended by his psychologist. That is notwithstanding that he is currently only spending supervised time with X once per month and has previously been recorded as being "extremely distressed" from being separated from his daughter and "deeply affected by the restriction as he misses his daughter immensely."[56]

1. The father's consumption of alcohol is a significant issue in this matter. The mother alleges that the father has a long-standing issue with his consumption of alcohol which is cyclical in nature; with the father having described himself as a high functioning alcoholic.
2. The father vehemently denies that he has any issues with alcohol misuse and that he has ever called himself a high functioning alcoholic but submits that his proposal; that being, that he submit to CDT testing for a period of twelve months and a breathalyser test prior to and subsequent to his time commencing, sufficiently ameliorates any alleged risk to X spending unsupervised time with him. He deposes that he did not drink alcohol excessively whilst X was in his care post-separation and prior to the mother commencing proceedings, asserting that he drank no more than two glasses of wine with dinner.
3. The mother deposes to several incidents that occurred during their relationship whereby she observed or was told that the father had been under the influence of alcohol, including:-
   • In early 2017 the father nearly drove a vehicle off the side of a cliff. He subsequently told the mother that he had taken two Xanax and had drunk alcohol.
   • The mother was told by one of the school mothers in October 2022 that the father "stunk of alcohol and was acting as [if] he was on drugs."
4. The father does not deny either of these incidents; either in his written affidavits or during his evidence in chief. The mother was not cross-examined about either of these two specific incidents. The mother's evidence is clear and unequivocal. I accept and find that the above two incidents occurred as deposed to by the mother.
5. A report from Dr KK, specialist in addiction medicine, gastroenterology and hepatology dated 3 June 2020 was prepared for the purposes of the proceedings. In this report, Dr KK records the father telling him that his drinking escalated in 2018; whilst stating that he could not recall the details, the father thought at this time he was drinking 1 - 1 ½ bottles of wine per day. The mother asserted that it was two bottles of red wine daily between February and August 2018. The father stated that he was advised to reduce alcohol, but he did not do this until he was admitted to hospital in mid-2018.
6. Subsequent to the father's release from hospital he abstained from drinking for a period of two months. The parties then came to an agreement whereby the father would only drink in the mother's company. In February 2020 the mother was at work late and the father consumed alcohol with friends; the father asserting that he only had three drinks and stopped when he was told he had to collect X. The mother became upset the father had broken their agreement and was drunk. The father asserts he was not intoxicated.
7. Dr KK opined that the father had a period of alcohol dependence for approximately six months in 2018 for which treatment was successful and had not, as at June 2020, had a significant drinking problem since then.
8. I accept and find that the father had a period of alcohol dependence for approximately six months in 2018. I cannot make a finding, for the reasons recorded below, that, save for the period at the end of 2024 where the father was drinking one bottle a night, he has not any had any difficulties with alcohol since that time.
9. By way of attempting to minimise his use of alcohol the father asserted that "only the mother and Ms G" ever said anything about his alcohol consumption. Inconsistent with this evidence however the father then gave oral evidence that Dr JJ gave him tough love about "the alcohol use." Whilst he could not recall if he ever discussed his alcohol use with Ms NN, his previous psychologist, the father conceded that it is an obvious issue he should have disclosed to her. Ms NN's report does not record the father's alcohol usage whatsoever. I accept that it is most likely that the father did not raise this with her.
10. The father conceded in cross-examination that he came to an agreement with the mother in mediation on 6 April 2020 that he would provide breathalyser results prior to his time with X and that he never did that. Whilst accepting that this would have undermined the mother's trust in him, he did not do it for two reasons:
    • He was concerned because he undertook research and "RBT devices are no more accurate than flipping a coin". This is despite the father now proposing that he provide a breathalyser test.
    • Secondly, he was "fed up with [the mother] controlling me so I didn't comply."
11. The father's refusal to undertake breathalyser testing despite agreeing to do so is a cause for concern.

1. In June 2022 the mother was contacted by Ms G, a prior partner of the father who informed her of her concerns that X was at risk in the father's care on account of his excessive alcohol consumption. Ms G was a witness in the mother's case. She deposes that, in summary:
   • She first commenced a relationship with the father when she was 16 years of age and the father was 20. The relationship at that time lasted for a few months only. She and the father recommenced their relationship again in mid-2021 and moved in together towards the end of 2021. They separated on 22 April 2022.
   • During the relationship, she observed the father drinking alcohol daily, "easily" consuming 1 ½ to 2 bottles of wine per day. The father would try to hide the level of his drinking, and she would often find empty bottles hidden, including outside his window.
   • The father's level of drinking resulted in him being unable to remember conversations they had. His driving ability was also affected and there were occasions she observed the father having difficulty staying in the lanes and swerving in the car.
   • During the time she lived with the father she observed that he drank alcohol when X was present and in his care which made her feel uncomfortable and worried for X's wellbeing.
   • On 20 April 2022 the father called her at approximately 5:00pm and asked her to help him care for X as he had hurt his knee. When she arrived at the father's apartment that evening, she observed him to be lying on the lounge with bloodshot eyes and smelling strongly of alcohol. She formed the opinion that he was drunk. She cared for X that evening including preparing both X and the father something to eat. The father went to sleep from approximately 6:30pm. The next morning she observed the father to be walking on his leg without limping and showing no signs of being in any pain. When she questioned the father about his apparent knee pain, he became angry and said to her words to the effect of: "I know I messed up, but why do you have to make me feel worse?"
   • She attempted suicide on one occasion when she was in a relationship with the father. At that time she was diagnosed with general anxiety disorder, depression and avoidant personality disorder.
   • During a hospital stay at OO Hospital in early 2022, she disclosed to her psychologist that she felt unsafe in her relationship with the father.
   • On one occasion when they went to the cinema together, the father became enraged at a 14 year old boy who was talking in the cinema and threw popcorn all over him, asking if he was "happy" he spoilt the movie.
   • On 20 June 2022 she contacted the mother to discuss her concerns for X's safety and the father's drinking. It took her some time to report her concerns to the mother following her separation from the father as she was worried that the father might retaliate. She spoke to the mother in person in around January 2023 and advised her that the father had broken into her home while she was not there and had bragged to her about it. She also told the mother that she had found in the father's files on his desk a photograph he had taken of the mother's notebook, which contained the mother's personal handwritten notes.
   • On 30 September 2023 she sent the father an angry text message.
2. The father denies the incident of early 2022. In cross-examination he accepted that he may have sent her a message to say he was struggling because of his knee, but that was all. He further denies the alleged incident in the movie theatre. The father attempts, by way of his affidavit and the vigorous and harsh manner in which cross-examination was conducted, to cast aspersions on the veracity of Ms G's evidence by manipulating for his own benefit the existence of Ms G's mental health fragilities.
3. The father's reliance on Ms G's psychological vulnerabilities in attempt to bolster his case is surprising in circumstances where the father submits that I can rely upon his evidence despite his own mental health background as recorded above. The factual finding the father sought as to the correlation between Ms G's mental health and the truthfulness of her affidavit was never adduced. The father's cross-examination of Ms G was aggressive in its tone and unnecessary, frequently returning to her mental health and attempted suicide, such that I terminated the line of questioning.
4. The father further attempts to sling as much mud as he can on Ms G by giving evidence and cross-examining her as to her alcohol usage during their relationship. It was then submitted that Ms G's evidence could not be believed because of "serious non-disclosure", that accusation arising from the fact she did not disclose her suicide attempt in a previously filed affidavit. I do not accept this submission in light of the frank and open manner in which Ms G gave her evidence. I am not of the view that any "non-disclosure" was a deliberate attempt on Ms G's or the mother's part to conceal any part of her reality. I accept the mother's submission that Ms G's admissions to hospital are not particularly relevant to consideration of the orders for X. The father failed to disclose his own hospital admission in his written evidence. It is thus a surprising submission for the father to make in light of the serious issues with the father's honesty as recorded earlier in these reasons.
5. During her cross-examination Ms G:
   • Agreed that she had attempted suicide.
   • Deposed that she consumed a lot more alcohol than usual when in a relationship with the father and readily conceded that the father once found her in a motor vehicle drunk.
   • Deposed that she did not contact the mother sooner as she was concerned as to the repercussions; she was fearful for her own safety. She reached out to the mother after she was no longer living with the father.
   • Deposed that by the time she got home each night from work, the father was typically in the bath drunk or upstairs and well into his drinking.
   • The father spoke harshly to her when he had been drinking but was not like that when he was sober.
   • As to the incident of early 2022, they were still living together at that time and she had gone for a walk. The father had called her to come and help him because he had hurt his knee and couldn't get off the lounge. This was the only time she observed him too drunk to care for X. She deposed that she left after such incident and that was because:

I felt unsafe before that incident with [X]. It was an observation of all his behaviours and lies put together - and that was the last catalyst for me to get out. Prior to that I didn't have anywhere else to go. So I was kind of in a situation where I felt stuck, but after that incident with [X] and his response to that I was done. I had to get out.

...

He just completely refused to - it was his denial of his behaviour, his response to some other things that had happened - just everything. To think that he was going down a path where he was willing to be drunk in front of his own child - I wasn't willing to do that.

• As to the incident in the movie theatre, it was "really frightening" to see and caused her to feel unsafe.

1. The father submitted further that neither Ms G's evidence nor the evidence of the mother as to such a conversation could be believed as Mr H had no knowledge of it, it is not in the affidavit sworn by the mother in November 2022 and:

In fact, her Parenting Questionnaire in November '22 stated, essentially, everything's going very well. Issues of alcohol abuse and mental illness travelling pretty well. So what happened [in mid] 2022? The mother has either lied to your Honour or she has absolutely no regard at all for the safety of her child.

1. The father's submission is partially incorrect. Mr H gave evidence that he recalled the mother having a conversation with Ms G in mid-2022 and remembered being concerned about the mother attending. He simply stated he could not remember much about the phone call "arranging the meeting" (being the in person meeting between the two), and that he couldn't remember specifics about such phone call, bar that the mother was worried.
2. I accept that this conversation with Ms G is not in the mother's November 2022 affidavit. I do not place significant weight on that in circumstances where it clearly raises concerns as to the father's alcohol use. It states at [36] that "there have also been many other occasions where [the father]'s misuse of alcohol has put X at risk."
3. Paragraph 17 of the Mother's Parenting Questionnaire of November 2022 records:

Do you have any other concerns about your safety or the children's safety other than while attending Court? If yes, what are those concerns?

_ No

X Yes, what are those concerns?

Yes for me which is why there is an ADVO in place

I am seriously concerned with [X]'s father's ability to care for her when he is under the influence of alcohol, drugs or suffering from PTSD.

1. At paragraph 45 the mother, when recording what she proposes for X's parenting arrangements in the future, states the following as to X's live with arrangements:-

It is important that [X] has a safe, stable and reliable home especially during school term time....

I have concerns regarding his ability to care for her given his alcoholism, mental health and drug taking.

As to the time that X spends with the father during weekends the mother records her proposal that:

One weekend night with her father every second weekend if he can show he has good mental health and alcohol/medication consumption under control. This is currently what is occurring.

Then, as to X's time with her father during school holiday periods the mother records her proposal that:

If under the regular care of a psychologist and can show he is not drinking. Father to have [X] the first five nights of the school holidays.

1. The submissions as to the Parenting Questionnaire were plainly wrong and should never have been made. It is a truism to say I do not accept them.
2. The mother conceded that she handed X over for time with the father following her conversation with Ms G but that she regretted it. When asked why she did not go to the Department of Communities and Justice, the mother replied:

I was very scared about [the father] being in the police and him always saying he was connected to people in those positions of power.

...

I know that he told me he was in the police for our entire relationship, and he told me if I ever did anything to cross him he would mess me up and get me killed. So it's very difficult to work with someone like that.

1. When asked why there was no evidence as to why she would expose X to "to a shocking drunk who is driving her at least four times a week" or why she "didn't take any action at all between early 2022 and late 2022", the mother replied:

I believe I said I have remorse or regret about that - doing that. But also I believe I said something along the lines of I was trying to balance - trying to do what was right by [X] but also deal with all these incoming threats from [the father] about having time and worrying about the repercussions if I withheld, what he would then do.

1. Ms G was a compelling witness. Despite the father's attempts to cast aspersions, her evidence was clear, coherent and responsive to questions asked of her. I accept her evidence. It is damning for the father.
2. Interim Orders made in 2023 provided for the father to complete a CDT test within 24 hours of being requested to do so by the Independent Children's Lawyer. The father undertook eight tests between January 2023 and January 2025. There was an eight-month period during this time when no tests were undertaken; from 29 February 2024 to 14 January 2025. All results were all within the normal range, save for August 2023 which indicated excessive alcohol use at 2.4%. Correspondence received from the father's lawyers asserted that the father had attended various functions which resulted in a "slightly elevated reading".[57]
3. The father refused further tests requested by the mother. Whilst accepting that the mother would have been provided some confidence had he simply undertaken such testing, again the father's evidence was that "I chose not to do it as I was completely sick of having every facet of my life controlled by her... and I hate blood tests."
4. Despite drinking a bottle of wine a night between August and December 2024, the father denied he was a high functioning alcoholic but conceded he was drinking too much. He was at pains to discern between his consumption and that of an alcoholic:

A high functioning alcoholic is somebody that gets up every morning with a *inaudible*, consumes alcohol throughout the day because their body is not coping without alcohol. I was somebody who went home, got myself up to a bottle of wine a night, would go to bed, get up the next morning, go to the gym and go to work. That's not an alcoholic.

...

An alcoholic is somebody who has a physical imperative to drink. Somebody who is reliant on alcohol, physically and mentally.

1. When it was put to him that it must have been the case in the latter half of 2024 that he had been exhibiting traits suggestive of alcoholism, he curiously stated that "it was over-drinking, not alcoholism."
2. The father deposes as to his undertaking a fitness challenge in January 2024 called "[...]", wherein those partaking drink no alcohol and exercise twice a day for number of days. Such evidence does little to alleviate the risk concerns as to the father's cyclical excessive use of alcohol where this fitness challenge was completed prior to the father proceeding to drink a bottle of wine a night between August and November 2024. In any event, the father conceded that in February 2024 he and Ms P "had a break" from the challenge and from then only "sort of half continued." He conceded he then started drinking.
3. As recorded above, the father had a period of sustained alcohol consumption between August and early December 2024. During the interviews for the updating expert report, the father denied any mental health impact of this increased alcohol consumption but told the single expert that his sleep was disturbed, he experienced less overall vitality and was probably on a "bit more of a downer"; "it didn't make me rise and shine." [58]
4. The single expert further recorded that the father's denial of psychiatric diagnoses since the initial interviews is called into question given his lack of frankness regarding his excessive alcohol consumption in 2024. He opines that the father's sadness he referred to as the reason Ms P asked him to move out and his description to the single expert of mornings being more difficult may have arisen from "a period of depressed mood."[59] Indeed, the father told Dr KK in 2020 that he had been drinking 1 - 1 ½ bottles of wine in 2018 because he was depressed. When cross-examined as to whether increased alcohol consumption was a "coping mechanism for depression", the father stated that it was merely a "coping mechanism for sadness." Such response is indicative of the father's trivialising of the seriousness of his alcohol usage and his mental health. I accept the single expert's unchallenged opinion that:

The Father's lack of frankness about such important issues raises serious concern about his ability to reflect on his functioning and its potential impact on his parenting capacity. [60]

1. The father gave oral evidence that he is currently attending (having attended two sessions) upon a counsellor whose name he had substantial difficulty recalling. Initially, he said he had sought the assistance of someone named Mr PP for professional help regarding excessive alcohol consumption. Following the luncheon adjournment, the father informed the court that this individual's name was in fact Mr PP. His oral evidence was that his goals for counselling were to learn "better" and "more mature" ways of coping.
2. Undated text messages between the father and an individual by the name of Mr PP were then tendered into evidence. These text messages record Mr PP attempting to arrange the next session, but the father advises he is too busy at the moment. The father then asks him to tell him the name of the course/counselling he is providing him with so he can discuss it with his barrister. Mr PP advises that it is AOD (alcohol and other drugs) counselling and it is a "12 week voluntary program aimed at assisting people with substance use they deem problematic."[61] A fulsome examination of the father's alcohol usage and related evidence immediately succeeds this section.
3. Unless the father has only commenced this program for some perceived advantage in these proceedings, he must, by his own actions in commencing such a course, concede that his alcohol or other substance use is problematic, despite his various assertions to the contrary.
4. The father believes he has better coping mechanisms now such as exercising: "I don't drink more than a bottle every night as I wouldn't be able to get up." The father was however exercising through his most recent bout of excessive alcohol consumption.
5. For the above reasons I accept and find that the father has a longstanding difficulty with alcohol, and that such difficulty is cyclical. I cannot be satisfied on the evidence that such issue has been sufficiently addressed by the father. I further accept the single expert's opinion, given the reasons recorded above, that it cannot be excluded that the father will struggle to look after X in the event that her time with him increased during any times of excessive alcohol consumption in the future. The single expert opined that excessive alcohol consumption is understood to exacerbate ongoing mental health conditions, particularly anxiety and depression. Given that PTSD is an anxiety disorder, evidence that the father's alcohol consumption is not excessive would be required to go towards addressing concern that the father's mental health does not present a current risk to his parenting capacity. I accept this unchallenged opinion.

The Father's Connection to Pornography, Child Abuse Material and a Convicted Paedophile

The Father's Memory Cards Found in his Wallet

1. The mother was aware when the parties first commenced their relationship that the father owned and operated an adult-media website "[...]", which he has operated since 2009. The images displayed on the site are taken by the father during photoshoots. In his oral evidence the father clarified that:

It was a pornographic website. Yes it was girls in swimsuits but there was very suggestive poses and actions and so on while they were wearing that swimsuit. So one would look at that and I would say be under no misapprehension that it was for sexual gratification.

1. In mid-2019 the father's wallet was found on the road and handed in at Suburb FF Police Station. Memory cards were contained within the wallet. Police discovered upon investigation of the memory cards a number of pornographic images, though all images appeared to comprise females over the age of 16. No charges were laid. The mother was not aware of this incident until she commenced these proceedings.
2. The father deposes and I accept that he was never questioned by any police officer when attending the police station to collect the wallet as to the contents of his wallet or the images on the SD cards contained therein. The father deposes that the contents of the SD cards "was almost certainly" photos directly from his camera containing images from any number of photoshoots that he engaged in for his website. I accept and find that the said images were legal and the father's unchallenged evidence that images on his website were taken with the consent of the adults he photographed.

The Father's Failure to Report Child Sex Abuse Material and Connection to Mr QQ

1. The father deposes that he began working for Mr QQ in late 1999/2000. In 2001, he went into business with him and they incorporated a company "[RR Company]." They were shareholders and directors with two other people.
2. The father deposes that "whilst working" for Mr QQ he was given a laptop for work purposes which he regularly took home. One evening, shortly after commencing working for Mr QQ, he had a female police officer friend at his house who used his laptop and discovered an image within a folder that "appeared to be of a young girl in underwear." She told him to get rid of the laptop as he might be implicated. He returned the laptop the following day and allegedly told Mr QQ "don't ever give me this laptop again or any laptop with such images on it." [62] The father asserts that he has never been questioned by police in relation to any child sexual abuse material. He denies ever having such material in his possession or control, nor has he ever viewed it, save for this incident.
3. The mother deposes that after learning Mr QQ's name, she searched it and found out that he was sentenced to life imprisonment in Country SS for child sex crimes. The father himself deposes that he is aware that Mr QQ was imprisoned for serious child exploitation charges in 2013.
4. The father's oral evidence in cross-examination on this topic was concerning. He deposed that he was shocked and horrified by the image and that he could see that it was of a child. He did nothing about it however, as there was a power imbalance between himself and Mr QQ, who was his employer at the time. He asserted he was "young and impressionable" and needed a job.
5. As to his failure to report this material to the Police, the father conceded during cross-examination that:
   • at that time he would have been 28-30 years of age;
   • he could have obtained employment somewhere else but Mr QQ "was the first person giving me a crack at working in [my chosen field]" ; and
   • after seeing this image he later went into business with Mr QQ.
6. I reject the father's excuses for not reporting the existence of child sexual abuse material on his employer's laptop. It is highly concerning that the father did not report this horrendous crime and later went into business with the perpetrator. The father's failure to report the child sexual abuse material found on his work laptop is indicative of his lack of insight and his feeble attempt at justifying such action, being his assertion he was "young and impressionable," does little to assist him nor allay my disquiet.

The Father's Connection to A Child Sexual Abuse Website

1. A New South Wales Police Service Intelligence Information System Information Report Summary dated late 2002 records that in 2003 the US Customs Service, in conjunction with the Federal Bureau of Investigations, Internal Revenue Service and US Attorney General commenced a joint taskforce, code named operation Falcon, to detect individuals and corporations involved in the commercial production and distribution of child sexual abuse material.
2. Through the above investigation, the website operating the sale of access to various child sexual abuse websites, details of the websites purchased, logs of the number of times subscribers access these websites and details of credit cards used by these identities to make these purchases was obtained. Having analysed the records and determined that there were approximately 708 Australian based identities that purchased access to the child sexual abuse websites via credit card, the website information was provided to the Australian High Tech Crime Centre. A further list containing an additional 202 purchases of child sexual abuse material and 27 child sexual abuse websites were later obtained by the Australian Federal Police. The report records that the following personal details were entered to subscribe to a child sexual abuse website:

Name: [Mr Andrews]

Address: [TT Street, Suburb UU]

Email: [...]@[...]

Phone number: [...]

Credit card number: ...#[...]

Date of transaction: [...] 2022

Website name: [...][63]

1. It records that the AFP were unable to confirm the identity of the person of interest through the credit card or email account used and were therefore unable to progress the investigation further.
2. The father does not specifically refer to this report in his affidavit, although the report was available prior to the filing of his trial affidavits. The father does not address the specific details in the report and the alleged date that the child sexual abuse website was supposedly accessed. In deposing as to the wallet incident, the father does broadly deny in his affidavit that he has ever had child pornography material in his possession or ever viewed it save for the incident described above and that:

I am of the view that perhaps the police had done a search of [Mr QQ] and my name came up as being associated with him due to the company we had together.[64]

1. In cross-examination by the mother the father:
   • conceded that the email address listed was correct;
   • he did work for the company listed in such email address;
   • he could not recall whether he had ever lived at the specific street address listed but did live at Suburb UU;
   • the phone number was not his as he has "had the same mobile for as long as I remember";
   • he could not recall whether that had ever been his credit card.
2. The following day in cross-examination by the Independent Children's Lawyer the father deposed that, whilst he had not given this evidence as to this report anywhere previously, his "only thought" as to how his name came to be on this list was that Mr QQ was in contact with his credit card. The father then asserted that the email address listed was not in fact his email address; it was wrong, having discovered this by searching his email account. Whilst deposing that he was able to locate old emails from this workplace overnight, none were adduced into evidence. I have difficulty accepting the evidence of the father in this regard; firstly because of his credit issues and secondly because no documents were tendered to support the veracity of the father's claims.
3. While I am unable to safely make a formal finding that the father accessed child sexual abuse material on this occasion, I accept that this incident and his proximity to such material is a component of the nexus of risk that surrounds the father that I am required to consider. It will be discussed later in these reasons.

1. In late 2020 the father was investigated by police for allegedly making a recording under the skirt of a female school student at a supermarket. The mother was not aware of this alleged incident until she inspected material produced under subpoena by NSW police pursuant to orders made by this court on 9 February 2023.
2. In evidence is a video recording of the alleged incident. It depicts the father dropping an object directly under the skirt but behind the legs of a young girl wearing a school uniform. He bends down with his phone in his hand and picks up the object, with the back of the phone with the camera pointed upwards. He then swiftly moves away from the girl and towards the front of the store.
3. The father's actions were such that the alleged victim or the person with whom they were with followed the father to his car and took a photo of him inside his car as well as the registration plates and forwarded the photos to the Police. Whilst I accept that we know nothing of the alleged victim; the Police after having viewed the CCTV recording state that:

The PN's actions were suspicious, which have given the investigators some concerns. CCTV footage certainly depicts suspicious behaviour.[65]

1. Whilst the father deposes at paragraph 90 of his affidavit that he has no recollection of the events of late 2020, he goes on to depose in detail his movements on this date as if they were fact, having "glean[ed]" the information based on photos taken that day and correspondence from the mother's solicitor:
   1. The following morning, [late] 2020, I drove [X] to day-care...Following dropping [X] to day-care I immediately drove to...Shopping Centre to get breakfast at McDonalds. I ordered my usual breakfast of coffee and [...] and sat down in the café to eat my breakfast....

93. I then went to [the supermarket] and purchased [food].

94. After I had purchased my groceries I drove back to my home...

1. I recall making that dish for lunch as I took photos after I had prepared the meal and place the cooked meal in containers and into my fridge. I took photos of the food at approximately 4:18 PM...[66]

(As per original)

1. The father deposes that:
   • He did not follow the student around the supermarket. The video does not show that he was following the student into various aisles.
   • He would not intentionally drop his phone under a girl's skirt.
   • He was at the store briefly, for no more than 6 minutes.
   • It is rare for him to eat a particular kind of food, and he does not recall the last time he purchased it.
   • From the video the mobile phone fell from his hand, and he immediately leaned over to pick it up. "I say that the video shows that I had dropped the video for 1-2 two seconds and I immediately bent over to pick it up. I cannot see from the video that I dropped an object in between the girl's legs." [67]
   • Although he attended the supermarket frequently, he did not attend on more than one occasion each day.
   • The father has at no time been contacted by the police and he was not aware of any incident or allegations until informed by his solicitor of the information produced under subpoena by the NSW police service.
2. It became readily apparent during the father's cross-examination by the Independent Children's Lawyer that, despite the impression one is left with when reading the father's detailed affidavit as to his movements on this day, the father has no independent recollection of the day. His explanation about his movements on this day could not be reconciled with the time stamp on the video recording produced by the store at which the alleged incident occurred, which showed that this incident occurred between 5:19pm and 5:23pm. The father's evidence then became that he returned back to the supermarket after initially going after his McDonalds breakfast. This was to get two other food items.
3. In submissions, the veracity of the video recording was then attempted to be challenged:

This video has been through so many hands, how could anyone be sure as to what time the video is? We just assume because there's a time there, that must be the right time and we can't do that, because there's no evidentiary line that brings the time to the fact.

1. This submission was rejected by me at the hearing in circumstances where the video, including the time stamp contained on it, was tendered without objection.
2. The father submitted that the Independent Children's Lawyer was "nitpicking" as to the drafting of the father's affidavit. I reject this submission. The father's affidavit clearly gives the impression that he does recollect his movements on that day despite initially deposing that he has "no recollection."
3. Neither the mother nor the Independent Children's Lawyer seek any positive findings as to this incident. I accept that I cannot, on the evidence before me, make a positive finding as to this incident, having regard to it's serious nature. The alleged victim is not a witness, nor is the police officer. No charges were ever laid, nor the father even questioned. In light of all of the above however, this is another incident that gives cause for concern.

Lack of Respect for Personal Boundaries and Orders of the Court

1. The gravamen of the Independent Children's Lawyer's concern as to risk of harm to X in the father's care relates to the father's lack of respect for personal boundaries and the increased risk of intrusive or invasive behaviour that became evident during the course of the father's oral evidence. I accept and find, for the following reasons, that the father has behaved in an intrusive and invasive manner towards the mother.
2. From March 2020 the father was recording most of the interactions he had with the mother on his phone. He recorded the mother on multiple occasions, including taking a photograph of her at X's dance concert without her knowledge or consent one month after the Apprehended Domestic Violence Order was withdrawn. The father conceded that this action was intrusive.
3. The father conceded in his trial affidavit that subsequent to the mother leaving the home, she left the computer logged in under her account which meant her personal messages continued to come through to the computer. He took screen shots of her text messages for a period of approximately four weeks post separation. It did not occur to him at the time that this was intrusive - it was only when his solicitor told him to stop that he did. The father conceded in cross-examination that this was violating the mother's privacy.
4. The father also continued to access the mother's work calendar and used this knowledge to his own advantage to know the mother's location and movements, for example in March 2020 when the mother was at a hotel in Suburb GG with X. The father however was of the view that this behaviour was "different" to accessing the mother's emails post-separation, as the mother had shared her work calendar with him; noting that this occurred prior to the parties' separation. He would not concede that this was a violation of the mother's privacy as "she continued to share it with me." While he conceded that the responsible thing would have been to message the mother that he could still see the calendar, he attempted to downplay the situation and attribute blame to the mother:

COUNSEL: Did it occur to you that she probably didn't want you to see what was going on in her calendar after 29 February?

FATHER: At the time, and now, I would assume that if [Ms Brown] didn't want me to see something, she would've taken every measure to not let me see it.

...

COUNSEL: Didn't think it was intrusive for you to continue to see what was going on in the day to day life of your former partner?

FATHER: It wasn't the day to day - it was her work calendar as I recall - and at the time as I said, no it didn't occur to me.

(Emphasis added)

1. In cross-examination the father then conceded that upon vacating the home in May 2020 post-separation he took photographs of notes that the mother had written in her personal notebook so that "I knew what she was thinking." He conceded that the mother was not there when he took the photographs and he did not have her permission to read the notebook nor take photos of it. He admitted he thought it was intrusive, but only with the benefit of hindsight.
2. The mother deposes that Ms G told her that the father had told her that he broken into the mother's home when she was not there and taken several items of the mother's including her car key and handwritten legal notes. The father further told her that he "screwed around" with some of the mother's personal belongings to scare her. In his trial affidavit the father deposes:

I did not attend at [the mother's] home and have never attended her home since separation. I have no reason to do so." [68]

1. He told the single expert in his first set of interviews in August 2023 that he had not taken a car key from the mother's home, and "he said that he would have no method of getting into [the mother's] house."
2. Despite his assertions above, the father further conceded during cross-examination that he returned to the mother's home in December 2020, seven months after vacating and nine months post-separation, on an evening when he knew the mother was not there; X had informed him they would be away. He went to the home at night, with the knowledge that his keys would not give him access to the property as the locks had been changed, "in the hopes" that the back door would be unlocked. According to the father, the back door was unlocked.
3. The father then went into the garage, opened the door to underneath the house and looked at the property of his that was left and made notes. The father went back upstairs through several of the rooms including the mother's office and her bedroom. Having entered the mother's bedroom, he took a photograph of a Christmas card from Mr H that was on her bedside table. He did not tell the mother, nor did he ask her permission. When it was put to the father that he did this at night because he knew what he was doing was wrong, his first answer was that he went at night because he went after work. He then conceded that "probably" part of the reason he went at night was because he wanted to make sure no one saw him. It took the father three times in cross-examination before he could acknowledge he knew his actions were wrong:

COUNSEL: You knew it was wrong don't you sir?

FATHER: I felt at the time that's what I needed to do.

COUNSEL: You knew it was wrong, didn't you sir?

FATHER: I knew that there would be hell to pay if [the mother] found out, so I went at night.

COUNSEL: I'm going to try one more time sir - you knew it was wrong, didn't you?

FATHER: Yes.

COUNSEL: And even though about five minutes ago you just told Her Honour that you admitted - you realise after you did the parenting course that you made a mistake, it still took me asking you three times before you could admit just now that it was wrong?

FATHER: It was wrong.

1. The father was unable to provide a reason as to why he went into the mother's bedroom. He could not recall if this was to see if she was in a relationship with anyone else. He further could not recall why he took a photo of the Christmas card, then said it was "morbid curiosity." While admitting to counsel for the mother that entering the home was a violation of the mother's boundaries, astoundingly when offered the opportunity to reflect on his actions, the father said that it was not behaviour that he regrets. Later in cross-examination he did concede that the mother must feel "violated beyond belief" after hearing his evidence in the witness box.
2. As noted earlier in these reasons, the father admitted to installing the cameras into the air conditioning vents post separation, asserting that this was done as the mother took a wireless surveillance camera from the front porch and he wanted to ensure that if the mother came back and tried to damage the property further, she would not see the surveillance cameras and take them.
3. In late 2021 the mother advised the father that she would collect X from the Suburb C McDonalds at 4:00 pm. Despite the mother's advice to the father that she did not feel safe around him given his past actions and requesting he select a neutral changeover location, the father insisted on returning X to the mother's home at Suburb F; stating that the mother had no legal right to prevent him from returning X to the home of which he is the legal owner. In late 2021 the mother contacted the New South Wales Police and a provisional Apprehended Domestic Violence Order was made against the father for the protection of the mother, restraining him from going within 100 metres of where the mother lived or worked.
4. The father conceded in cross-examination that dropping X off to the mother's home was against the mother's wishes, however he simply did not care at the time that this was not what the mother wanted. He initially would not concede that his approach to the home was disrespectful.
5. In late 2022 NSW Police withdrew the application for an Apprehended Domestic Violence Order to protect the mother and it was dismissed. The following day, the father sent the mother a text message advising her that if she was unable to drop X off at McDonalds as her car registration had expired he would collect her from the mother's home. The mother replied:

As previously stated many times period you are never to enter nor come near my home/where I am staying as I do not feel safe around you given your past actions. If you do I will call the police.[69]

1. The father conceded in cross-examination that the original Apprehended Domestic Violence Order had been taken out as a result of the father's insistence on attending the mother's home against her request, and the very next day after the Apprehended Domestic Violence Order was withdrawn he did the exact thing that had caused the Apprehended Domestic Violence Order to be taken out in the first place. The father conceded that he had not learnt from his mistake in the December and that it was insensitive and disrespectful towards the mother.
2. In May 2024 the father attended school for X's sports carnival, approached X and spoke to her for approximately 5 minutes. On 20 May 2024 the mother's lawyers received an email from the father's lawyers requesting details, including the time and venue, for X's extracurricular activities. The mother deposes she found this request intimidating and was concerned that the father would attend. She instructed her lawyers to advise that she did not consent to the father attending X's extracurricular activities and that she viewed it as an attempt by him to circumvent the interim orders for supervised time. On 13 June 2024 the father's lawyers responded that the father would not be circumventing the orders as he would not be spending "direct and personal time with X."[70] In mid-2024 the father attended X's school assembly prior to being asked by the school to leave the premises.
3. The father conceded in cross-examination that that his attendance at the school on these two occasions occurred when there were interim orders in place for X to have supervised time with him only.
4. The father deposes that he attended X's end of year school concert in December 2022, less than one month after the Apprehended Domestic Violence Order was withdrawn and dismissed. He asserts that the mother did not have any issue with him sitting in close proximity to her, and in fact booked the tickets with assigned seating - "[t]here was 1 seat empty between us for X. Ms Brown sat next to me wearing shorts and holding the dance program." [71] The relevance of this last statement was not made apparent during the course of final submissions. The father took a photo of the mother and the person sitting next to her at this time without her knowledge as recorded above at [230]. When asked why he took the photo, the father's evidence was that he does not believe the mother's allegations that she is frightened of him and that photo supposedly exhibited that. Despite this explanation the father would not concede that he took the photo to gather evidence.

1. The father collected X on two occasions shortly after separation in March 2020 without the mother's consent. On 2 March 2020, the mother was notified via the daycare mobile app that the father had collected X from daycare at 3:45 pm without advising her. The mother went back to the home and "stayed there for a while despite not feeling safe."[72] The father also recorded her on this occasion.
2. Later in March 2020 the father collected X from daycare at around midday without the mother's prior knowledge, leading to the "[brick] incident" as recorded above.
3. On 25 November 2021 X was spending time with the father. The mother received a text message from the father that X told him she was bitten on the arm after her dogs were fighting. A further text message was sent the following day asking the mother what steps were being taken to ensure that this did not happen again, asserting that X had been bitten by the dog and "has a pretty decent mark on her." The mother responded, advising that that was not what happened; it was just a friendly dog rumble observed by her and she removed X out of the way:

[The dog]'s on her last legs and will probably be put down shortly. She wasn't bitten and if any dog did bite her they would be out. Where is the mark? I'll chat to her tonight and try see where this has come from as it's unlike her to make stuff up and understand that would be concerning to hear.[73]

Given it's taking you 24 hours to respond to such a serious issue, I am unconvinced. Having spoken to child services and the police. I've decided the best course of action is for [X] to stay with me until you can provide me with better assurances that [the dog] is no longer a threat to [X]'s welfare.[74]

1. By this stage the father had taken steps to collect X from preschool early despite it not being his time. The mother sent a further text message to the father advising him that there was no dog fight and no bite and later advised him that the dog had been removed. The father replied by telling the mother to not trespass on his property, he had called the police, and the Council Rangers would be at the mother's home on Monday to ensure that the dog was gone and no longer a threat to X, and that she would be staying with him until then. The father provided a case number for Child Services. The father did not answer the mother's phone calls. The mother called the police and ask that they conduct a welfare check.
2. The father text messaged the mother again and told her that if she was willing to write, sign and date a statutory declaration to say that the dog was gone and would not be back then he would return X to her. The mother prepared and executed a sarcastic statutory declaration the following day stating:

I... Do hereby solemnly declare and affirm that the dog known as [the dog] who has never bitten nor placed [X] at risk, is removed from my residence and will not return to appease your demands in order to return my child to me. Dated [...] November 2021.[75]

1. When the mother collected X, she advised the mother that she had hurt her right elbow (where the claimed bite had been) on the slide at preschool. The mother deposes that it was a mild graze. The mother spoke to X's preschool teacher the following week and was told that X had hurt her arm on this slippery dip that day. The mother called the council to ascertain whether a report had been lodged by the father as she was never contacted and was advised that the case had been closed.
2. I accept the mother's evidence as to there only being a mild graze on X's elbow. I accept the drafting of Statutory Declaration served little purpose. I do not accept that the father had reasonable or genuine fears for X's safety at this time and the father's conduct was disproportionate and self-serving. In cross-examination the father said that he would do this again if the same situation arose. In light of his having attended several parenting courses, the father's continued stance is concerning.
3. X spent time with the father on 26 and 27 December 2021 pursuant to the parties' mediation agreement. The mother received a text message from the father on 27 December 2021 advising her that X would be staying with him again that evening and that he would drop X back to the mother "tomorrow any time after 4." The mother advised she did not agree to this change as the agreement was that X would be returned to her at 5:00pm that day. The father replied:

There was no agreement at mediation for access visits after I had moved out of my house. You've had three weeks to respond to my custody orders proposal. You've also had almost two years to give me more time with [X]. We will see you tomorrow.[76]

1. The mother and father exchanged further text messages wherein the father advised the mother that she did not have permission to enter the property. The mother attended the property but there was no response so she left the premises. She contacted the police to conduct a welfare check. The father, against the mother's wishes, returned X to the mother's home on 28 December 2021.

1. On 21 December 2022 the father sent the mother emails threatening to withhold X unless he knew what time he was to spend with X on Christmas Day and again demanding that changeover occur at Suburb CC.
2. On 15 January 2023 the father retained X for five consecutive days without the mother's consent "as [the mother] kept her from me over the Christmas/New Year period."[77] The father also refused to allow X to speak with the mother via Facetime. X had not spent four nights in a row with the father since separation. The father conceded that telling X, who was seven years old at the time, that she could go home anytime was placing her in the middle of the conflict and was "terribly inappropriate." The father sent the mother a message demanding that she collect X in a car that had air conditioning and not on public transport. I accept that the father retained X during this period in retaliation for the mother not allowing X to see him on Boxing Day.
3. The father's above recorded conceded conduct is in clear contrast to his written evidence that "I have never refused to return [X] to [the mother]." [78] Further, such concessions belie his written assertion that he has "bent down" to all of the mother's wishes regarding X. [79] His affidavit is inherently contradictory.
4. Whilst I do not accept the submissions of the mother that these actions fall within the definition of family violence as they were designed to cause fear in the mother, I find the father's evidence clearly grounds a finding, as submitted by the Independent Children's Lawyer, that the father simply did not care what effect his actions had on the mother - he wanted to see X and took actions accordingly. Such action exhibits an arrogance and lack of insight. It caused a significant increase in tensions and mistrust between the parties.
5. In light of the father's concessions that he remained having access to the mother's calendar, I accept the mother's evidence that the father timed his retentions of X when he knew the mother was away, as he was aware where she was.[80] Action of this nature is calculated, deceitful and does not assist the father in his case. It is a physical manifestation of his entitlement and inability to respect the mother's boundaries.

1. The single expert held no concerns as to the mother's capacity to look after X's needs:

[X] has excellent school attendance and is engaged in many extra-curricular activities....No behavioural or emotional concerns or needs have been identified, and [X] appears to be faring well psychology. Given current living arrangements, the ways in which her needs are met can be largely assumed to be a result of the care [the mother] offers [X]. This was confirmed by [the father]. [81]

1. The father advised the single expert that he largely holds concerns with regard to the mother's alleged denigrating of him, particularly in X's presence. He gave an example of X informing him that the mother had phoned the police because "daddy wanted to hurt us." In evidence are videos of the father recording X, including one on 9 January 2022 - thirteen days after the father returned X to the mother's home against the mother's wishes. Prior to the video recording commencing, X had said something to him, and he wished to get it on record, so he began filming X and asked her to repeat what she had said. During cross-examination, the father conceded that it appeared that X was self-conscious about being video recorded as "she could see herself on the screen" but did not see how asking X to repeat something that involved her parents and talk of the police would have affected her. He did concede that it was inappropriate and put X in a difficult position. The single expert opined:

Of concern is [Mr Andrews'] preoccupation with a view that the mother actively denigrates him towards [X], and his description of purposefully asking [X] to repeat something she said and recording it. This presents a risk to the child, in that she may feel caught in the middle of the parents' conflict, or that she has done something wrong in making any such comments, irrespective of whether that [X] is aware of such recordings. Such behaviour on an ongoing basis would be harmful to [X] herself and to her relationship with both parents, particularly the father, as more recent research has highlighted.[82]

....the father has intentionally recorded [X] saying the mother has made purported denigratory comments about him. Such behaviour is potentially harmful to the child and unnecessarily involves [X] in the parental conflict.[83]

1. The single expert clearly opined that it is reasonable to conclude that the mother has capacity to facilitate a close and loving relationship for X with the father as she appears to look forward to her time with the father and immediately seemed comfortable with him during the observation. The supervision reports confirm X's behaviour in this regard. The single expert confirmed this opinion in the second report, stating that the mother's willingness and ability to facilitate and encourage a relationship between X and father appeared to be largely unchanged from the time of the initial interviews. This opinion was not challenged by the father in cross-examination and I accept it. I therefore accept the submissions of the mother that this is not a case where the mother has failed to facilitate a meaningful relationship. She has complied with orders, she has always said there are positive aspects of X's relationship with the father and submits that her case is very much focused on mitigating risk.
2. I accept the single expert's unchallenged opinion that it is difficult to assess the father's capacity to look after X's needs given the current supervised time arrangements. I further accept the single expert's unchallenged opinion that the father's self-reported difficulty in saying no to X, spoiling her and being silly with her is likely to prove unhelpful as X matures.
3. The mother deposed that, despite her concerns, she will comply with any orders made for X to spend unsupervised time with the father. That said, both the mother and the Independent Children's Lawyer submit that although there is no evidence to ground a finding that the mother' parenting capacity will be discernibly impaired should X spend unsupervised time with the father, a factor that I must consider is that mother is clearly worried and anxious and this undoubtably has had and will continue to have some impact on her and the household. It would not be an ideal situation that the mother, as the uncontested resident parent, be placed under stress and anxiety. The father did not directly address this submission.
4. I accept that the mother was unaware until the commencement of these proceedings as to the issues surrounding the father's possession and/or accessing of child sexual abuse material, the "upskirting incident" and the father being in business with a convicted paedophile. The mother deposes that learning of the above causes her significant anxiety in relation to X spending unsupervised time with the father. Whilst the mother does not believe that the father has been sexually inappropriate with X in the past and she has never observed anything untoward, the above and the father's past lies cause her great concern as to X's safety and well-being. The mother deposes, and I accept, that because of the father's lies, "I cannot trust anything that [the father] says." [84] Mr H deposes that he has observed the mother to experience stress and anxiety when dealing with the father which impacts her mood. The mother's treating psychologist has been assisting the mother to deal with her stress and nightmares.
5. The single expert opined that any time beyond supervised time is likely to prove distressing to the mother. Ms Q has discussed with the mother the prospect of X having unsupervised time, which Ms Q also deposed was a strong cause of distress for the mother. They have not discussed as yet what the mother will be able to do to assist herself if this occurs. There are several strategies Ms Q could recommend to the mother to assist her - the challenge will be that sometimes it does not matter what strategies you use, when you are managing primal urges:

"..it is hard to breathe when there is a lion chasing you... If there is a real threat, nothing can calm someone down. If it is only a perceived threat, it needs to be untangled... This is a hard one to work with - this is a visceral threat that the mother perceives to her child.

1. The single expert opines that there are no concerns held for X's welfare in the mother's care and she is the uncontested resident parent. An order will be made that X continue to live with the mother.

1. All parties agree that the mother should have sole decision-making responsibility as to X's long-term needs. The single expert expresses a view in favour of the mother having sole decision-making responsibility in his second report. For at least two years the parties have only communicated via legal channels. There is no trust between the parties. The mother reported to the single expert that the father's conceded lies make it very difficult to consider co-parenting. I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X's care. I am satisfied that as the uncontested resident parent the mother should have sole decision-making responsibility as agreed.

1. The mother does not propose changing X's surname. I am satisfied, and as agreed between the parties and the Independent Children's Lawyer, that for the reasons recorded above it is in X's best interests that the mother be restrained from changing X's surname.

1. The order sought as to the high school X is to attend is superfluous in light of the sole decision-making order made in the mother's favour and will not be made.

1. The Independent Children's Lawyer acknowledges that the proposals of the mother and the Independent Children's Lawyer provides for a very limited regime of time between X and the father. This is in circumstances where it is clear that X loves the father and enjoys her time with him.
2. The mother submits that X's time with the father should continue to be supervised until she reaches adolescence arising from an accumulation of risk arising from the father's:
   • perpetration of family violence and his reluctance to address this behaviour;
   • long repeated history of cyclical alcohol abuse;
   • mental health and suicidal ideation;
   • untruthfulness and failure to be honest with the single expert during interviews; and
   • connections to child sexual abuse and lewd behaviour.
3. The Independent Children's Lawyer submitted at the conclusion of the final hearing that the father's lack of respect for personal boundaries and the increased risk of intrusive or invasive behaviour was a real risk that emerged from the father's oral evidence. The Independent Children's Lawyer submits that frankness and candour are especially important in this matter where there are serious allegations of risk and the father is effectively asking the court to find that firstly, there is no risk, and secondly, to accept his evidence and trust him in relation to all of the concerns raised including his alcohol use.
4. The father submits that the mother's allegations and her concerns "indicates a hysterical nature" in circumstances where X spent unsupervised time with the father for two and a half years post separation and that there could be no cause for concern given the orders proposed by the father. Whilst the father concedes that he has lied to the court as to his alcohol use and his relationship with Ms Ps, during submissions the father rhetorically asked how such lies affected X and that:

He has passed the test about supervision. He has maintained a relationship with the child that he talks to twice a week and sees for eight hours a month, and more recently four hours a month.

1. The single expert clearly opined that there are countervailing risk factors inherent in each of the parties' proposals.
2. Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
3. I do not accept the father's apparent submission that, inferentially, the determining factor in deciding the orders that are in X's best interests is that the mother allowed unsupervised time for a period of two years post separation. The mother deposes to it as being the reason she did not report all the instances of family violence she alleges the father perpetrated. The father's case fails to appreciate the impact the father's lies as to being a police officer had on her decision making. In any event, the mother's conduct in allowing such time is not the determining factor. The court must consider what arrangements would best promote the safety of X and of each person who has care of the child. [85]
4. The assessment of risk of harm requires the consideration of two elements: whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable. [86] The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities. [87] It is not always necessary to make a positive finding that past conduct occurred when assessing the future risks in a matter. I may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of "unacceptable risk" falls within the broader issue of determining what is in the X's best interests and to which the resolution of the existence of an "unacceptable risk" is subservient. [88] Risks to X's safety may be capable of sufficient amelioration by other orders I make.[89]
5. As recorded above, the single expert was unable to properly complete a risk assessment in his first report as to the father's risk of harm to X for the purpose of his report, arising from the father's refusal to discuss a five-year period of his life between 1990 and 1995. The single expert opines that this is a putative period of life during which risk-taking behaviours in relation to substances and other elements would ordinarily be at a peak. I accept that the mother's concerns as to the troubling nature of this non-disclosure and her concern that the father is attempting to hide something is valid. I accept the single expert's opinion that this makes it more difficult to assess both the nature and the extent of any risk that the father might pose to X if she was to spend unsupervised time with him:

A significant lack of confidence exists in assessing the likely effect in [X]'s circumstance as a result of any increased time with the father under these circumstances. [90]

1. This concern is made the more significant by the failure of the father to call the one person who could have shed some light on the father's recent and current behaviours and circumstances; his current partner Ms P.
2. I accept the submissions of the Independent Children's Lawyer that because of this, X's best interests dictate that I proceed cautiously.
3. The single expert's written second report was clear: leaving aside any risk attached to the alleged "upskirting" incident, the father's avoidance of disclosure as to his recent alcohol misuse and concerns as to his history of lying ultimately meant that the single expert had "serious reservations" about X spending unsupervised overnight time with the father until she is old enough to deploy safeguarding behaviour. Whilst this opinion was as to the father's prior application for overnight time, this opinion was projected prior to the father's concerning oral evidence.
4. Upon being appraised of some of the father's oral evidence, the single expert resiled from his written opinion that X might spend unsupervised daytime with the father until she was established at high school (at least Year 8) and then overnight time could be considered. He had reservations even as to his recommendation for unsupervised day only time; it being contingent on the father continuing to interact and behave with X in a way that he has been during supervised time.
5. I accept that the father's alcohol use, whilst able to be monitored and tested in the future, continues to give rise to concern as to X's safety from harm as the father resorted to the same behaviour of drinking when his relationship with Ms P broke down for a period of time. It is apparent that the father has not learnt of other coping mechanisms to deal with stressful or emotional circumstances other than to drink excessively; even some six years later. I accept the submissions of the Independent Children's Lawyer that in itself, the cyclical nature of the father's difficulties with alcohol is as much of concern as it is unpredictable; it is unknown when the father will again become overwhelmed by the stressors of life and resort again to alcohol. The father's alcohol use is longstanding, and he cannot be relied upon to be honest about it. I therefore find that the father's long standing issues with alcohol gives rise to a significant risk of harm to X in the future. I accept however that there are sufficient monitoring safeguards that can be implemented to sufficiently ameliorate such risk as recorded below.
6. I have made a finding that the father perpetrated family violence upon the mother in mid-2019 wherein the father damaged property and used both of his hands to pull at the mother by her throat. Such behaviour caused both the mother and X to be fearful of the father. The father has a documented history of complex mental health issues. Whilst I have been unable to make positive findings on the evidence as to the father's connection to child sexual abuse material, save for his own concession that he did not report Mr QQ for possession of child sexual abuse to the authorities, the cumulative effect of this evidence and the father's lack of credibility as to his evidence gives rise to a significant suspicion that grounds a finding of X being at an unacceptable risk of harm in the father's care. The links to this abhorrent material and the "upskirting" allegation must be seen in the context of its consistent nature with the father's own conceded behaviours of accessing the mother's home, text messages and calendar. It is also consistent with the father taking a photograph of the mother without her consent and insisting on dropping X to the mother's home when she was clear that she did not wish him to do so. I accept and find that these behaviours give rise to significant concerns as to the father's boundaries and for the reasons recorded above ground a finding of unacceptable risk.
7. I further accept the submissions of the Independent Children's Lawyer that, as to the father "passing" the test of supervision, I must also look at the level of insight the father demonstrated during the course of his cross-examination. Whilst the father has undertaken an online parenting course, the father showed little insight as to the effect of his actions on the mother and on X; on several occasions deposing that he did what he did because he wanted to see X and he would do it again. Despite his concessions as to how his conduct may have affected the mother's trust in him, the father's oral evidence was that the only reason supervised time is still occurring is because of the mother. His frequent reliance on the benefit of hindsight when questioned as to the impact of his inappropriate behaviour does me little comfort. I am not of the view that the father has fulsomely reflected on his behaviour. The father has shown little capacity to shift, despite the benefit of two single expert reports and their recommendations, his entrenched view that the mother is at fault.
8. All of the above risks must then be weighed against the countervailing risks in continuing supervised time as deposed to by the single expert. The last two years of supervised time has already affected the relationship between X and the father - it is a limited, idealised relationship which will continue in its current form if supervision is to continue. Continued supervision leads to the risk that X, who loves the father and clearly wants to spend more time with him, will take matters into her own hands and seek the father out in a covert manner when she is older. The single expert was clear that this would not be in X's best interests. I would further not be confident having regard to my findings above as to the father's falsehoods and inability to comply with orders of this court that he would deal with such an approach in the appropriate manner.
9. The single expert further opined that continued supervised time may give rise to a negative impact on X's relationship with the mother. As X grows older, she will become more aware of such supervision and its limitations together with the difference between herself and her peers in terms of her relationship with her father, which may lead her to develop a view that it is the mother that is obstructing her relationship with the father. This would negatively impact her relationship with the mother. When asked how she would cope with X possibly being angry or resentful as she is having supervised time, the mother replied that she will make sure she has professional help if she needs it and will ensure that X still has a relationship with the father. In short, it was the mother's evidence that she is aware of the risk to her relationship with X but is prepared for that risk to ensure X's safety.
10. Conversely, the single expert opined on this issue that if unsupervised time were to commence, the father may attempt to give his version of the parental relationship and, given the father's history of lying, serious concerns exist vis-à-vis his capacity to not portray himself in a mostly positive light. The father has shown a ready stance in involving X in the conflict. He has discussed adult matters with X and recorded these conversations without cognisance of the potentially negative impact upon her. I am of the view that attempts to impress upon X an image of himself that he wants her to have cannot be excluded, and I accept the single expert's view that this represents a significant risk to X and potentially her relationship with the mother.
11. The father's lies increases the likelihood of harm occurring to X in the future. There is a multitude of risk factors in this matter as recorded above. They all underscore the likelihood of harm occurring in the future. The capacity to make the assessment about that is retarded by the father's mendacity. The impact of harm for X could be severe, reaching a magnitude of harm that is unacceptable. Whilst I have been unable to ground formal positive findings as to the specific areas of risk raised by the mother and the Independent Children's Lawyer, I accept that cumulatively they outweigh the risks to X in retaining supervision until she is of an age that she is able to more adequately able to self-protect. I am satisfied that ensuring X is safe from harm mandates that her time with the father not progress to immediately being unsupervised as sought by the father.
12. I am cognisant of the father's evidence that if his time with X is ordered to be supervised, he may not be in a financial position to pay for it to occur fortnightly; only once per month. Orders will be made for fortnightly time to allow X the opportunity to spend time with the father face-to-face each fortnight. in the event he is able to pay for same. The order will drafted in terms sought by the Independent Children's Lawyer which allows flexibility in circumstances where time occurring is dependent upon the availability of the supervisory service.

1. The mother seeks an order that supervision continue to the age of thirteen years as she will be twelve years of age when she commences high school. The Independent Children's Lawyer proposes that it continue until X is twelve years of age. Having regard to the oral evidence I made it clear to the parties and the Independent Children's Lawyer prior to the commencement of oral submissions that I was not bound by the parties' competing proposals and that I was contemplating whether, if the risk of harm was such that supervision was required, it ought to be for longer than that proposed. The Independent Children's Lawyer readily conceded that I may well come to the conclusion, after having heard all the evidence, that long term supervision is the safest option for X. She further submitted that it is probably the arrangement that would be least likely to lead to further conflict having regard to the mother's evidence as to her level of distrust of the father:

Given that, and if your Honour accepts that she is genuine about that, there is a real risk that if time becomes unsupervised, concerns will be raised; there might be new allegations. It might be further disruption to [X]'s time with her dad, because of some concern that arises from something that [X] might have said, or anything. And that may well cause a disruption in [X]'s time with her father and further conflict and contravention applications and the like; that is also something that your Honour has to take into account, notwithstanding that that's no longer a specific consideration under the 60(c)(c), it's obviously something that your Honour can consider.

1. The father made no submissions as to the age any supervision order should cease.
2. The single expert opined that supervision does not appear to be feasible until X attains 16 years of age, and that X may develop some resentment towards the mother if this were to happen. I accept this unchallenged evidence.
3. The single expert opined, prior to the father's oral evidence, that overnight time could be considered once X was in Year 8 as she will have reached adolescence and will be well established at high school. This same reasoning grounds my determination that X's best interests dictate that her time with the father remain supervised until she commences Year 8.

1. Save as to the question of the costs of the Independent Children's Lawyer, the submissions focused solely on the issue of whether X's time would continue to be supervised and, if so, the age at which it should cease. No submissions were about the balance of the differing versions of the orders sought by the mother and the Independent Children's Lawyer. The father made no submissions save as to the question of whether X's time should continue to be supervised. I therefore deal with the balance of the outstanding issues as best I can on the evidence before me.

What Other Safeguards Should be Put in Place to Ameliorate Risk?

1. Dr KK opined that the testing recommended and orders to be made would be that the father undertake to abstain from alcohol for 24 hours before seeing X and whilst in her company. If he has consumed alcohol within this period, he should indicate that he is unwell and cancel the visit. To monitor alcohol use, quarterly clinical monitoring by a suitable medical practitioner with a blood test including full blood count, liver tests and carbohydrate deficit transferrin ("CDT") testing should be considered. This can be completed by a local pathology service but CDT testing is not covered by Medicare and may cost around $100. As an alternative, a PEth test at the hospital could be undertaken (at modest cost) but such a test is only available for patients of a hospital, so if that test is performed Dr KK would have to be monitoring and he is comfortable to perform that role. PEth is a long lived direct metabolite of alcohol that remains detectable for 4-6 weeks after drinking even modest amounts of alcohol.
2. The single expert opined that the court may wish to consider hair follicle testing as a method to assess the level of the father's alcohol use and the use of a breathalyser before and after all time for X with the father is recommended.
3. In her oral evidence the mother deposed that CDT testing is difficult to trust and that something more accurate or long term would be better. It was the father's oral evidence that he would "absolutely" participate in PEth testing once per month which covers a period of 4-6 weeks, which is longer than the period captured by a CDT test. The father also asserted he would accept breathalyser testing as a condition of his time with X, as well as monthly CDT and PEth testing for a period of twelve months. The father's position of course is that his time with X immediately move to unsupervised.
4. Having regard to the findings I have made above, the cyclical nature of the father's alcohol usage, the expert evidence and my scepticism of the father to be truthful when something does not assist his case, I find it in X's best interests that the father's time with X be contingent on the father providing evidence of his ongoing commitment to minimising his alcohol use such that:-
   • I am satisfied that ongoing supervision will adequately provide that X is safe from harm in the father's care together with an order restraining the father from consuming alcohol 48 hours prior to and during his time with X as sought by the mother and the Independent Children's Lawyer.
   • For the first twelve months of X's time with the father graduating to unsupervised, the father will be required to undertake hair follicle testing no less than three months prior to him first commencing such unsupervised time and every three months thereafter, with time being supervised in the event of a test evidencing excessive alcohol consumption or the failure to undertake a test;
   • The father shall purchase and provide evidence of his undertaking a breathalyser test both prior to (as agreed to by the mother and the father) and at the conclusion of X's time (as proposed by the father).

1. No submissions were made as to where changeover of X should occur when not occurring at her school. I have no evidence nor submissions as to the difference between the McDonalds at Suburb V and the McDonalds at Suburb C. As between the parties and the Independent Children's Lawyer I am satisfied that the proposal of the Independent Children's Lawyer would have X's best interests at heart and will make orders as agreed to by both the Independent Children's Lawyer and the mother.

1. For the reasons recorded above including:
   • The father has conceded that he attended upon the mother's home post-separation without her consent and went through most rooms of the house, including her bedroom and study and took photographs of her personal effects;
   • Ms Q's evidence that the mother feels anxious and afraid when she is home alone;

I am satisfied that an order be made restraining the father from attending within 100 metres of the mother's current residence or place of employment together with an order, as proposed by the father, from approaching more than 20 metres from the mother. I am unable to make an order as sought by the mother that the father be restrained from approaching any future residence of the mother where she is not required to provide him with these details and the father may not be aware he is breaching such an order.

1. The order sought by the mother restraining the father from coming into contact with any of X's friends or associates is too onerous. I am satisfied that an order restraining the father from attending at X's school save for school events and extracurricular activities as sought by the Independent Children's Lawyer provides adequate protection.

1. The other orders made which have not been individually explained are either generally consistent with the orders mutually proposed by the parties or the mother and Independent Children's Lawyer and not the subject of submissions, or do not permit rational objection. These include:-
   • An order that X spend time with the father each Father's Day as sought by him and the Independent Children's Lawyer.
   • An order that X spend time with the mother each Mother's Day as sought by the father.
   • A Notation that the father is at liberty to access the school app.

1. I am satisfied that a careful consideration of all the above grounds a finding that the proposal of the mother as largely supported by the Independent Children's Lawyer is in X's best interests and best provides for her safety from harm.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

[2] Father's First Trial Affidavit, paragraph 60.

[3] Mother's Trial Affidavit, paragraph 97 iii.

[8] Section 65D of the Family Law Act 1975 (Cth) ("the Act").

[9] Ibid, s 60CA of the Act. This is confirmed in s 65AA of the Act.

[10] Ibid, s 60CC(2A).

[11] Ibid, s 60CG.

[12] Ibid, s 61D(3).

[13] Ibid, s 4(1).

[14] The Second Report, lines 651- 654.

[23] Father's First Trial Affidavit, paragraph 234.

[24] Mother's Trial Affidavit, paragraph 75.

[27] First Single Expert Report, lines 1091 - 1093.

[28] Father's First Trial Affidavit, paragraph 193.

[33] Father's Second Affidavit, paragraph 11.

[34] Father's Second Affidavit, paragraphs 6-7.

[37] Father's First Trial Affidavit, paragraph 87.

[38] Transcript of Hearing - 7 March 2025 - pg 28 paragraph 45.

[39] Affidavit of Mr J filed 17 November 2024, paragraphs 4-5.

[40] Mother's Trial Affidavit, paragraph 79

[42] Pickford & Pickford [2024] FedCFamC1A 249.

[43] Mother's Trial Affidavit, paragraph 74.

[44] Father's First Trial Affidavit, paragraph 52.

[46] Father's First Trial Affidavit, paragraph 172.

[55] The Second Report, lines 406- 413.

[57] Mother's Trial Affidavit, paragraph 120c.

[62] Father's First Trial Affidavit, paragraph 120.3.

[64] Father's First Trial Affidavit, paragraph 124.

[66] Father's First Trial Affidavit, paragraph 95.

[68] Father's First Trial Affidavit, paragraph 75.

[69] Father's First Trial Affidavit, paragraph 134.

[71] Father's First Trial Affidavit, paragraph 212.

[72] Mother's Trial Affidavit, paragraph 90.

[76] Mother's Trial Affidavit, paragraph 98j.

[77] Father's First Trial Affidavit, paragraph 60.

[80] Mother's Trial Affidavit, paragraph 98(h).

[82] The First Report, lines 905 - 915.

[84] Mother's Trial Affidavit, paragraph 111.

[85] Section 60CC(2)(a)

[86] M & M [1988] HCA 68.

[87] Isles & Nelissen [2022] FedCFamC1A 97.

[88] M & M [1988] HCA 68 and B & B [1993] FamCA 143.

[89] Keane & Keane [2021] FamCAFC 1; (2021) 62 FamLR 190 at [84]